...One last thing: Bush should consider pardoning--and should at least be vociferously praising--everyone who served in good faith in the war on terror, but whose deeds may now be susceptible to demagogic or politically inspired prosecution by some seeking to score political points. The lawyers can work out if such general or specific preemptive pardons are possible; it may be that the best Bush can or should do is to warn publicly against any such harassment or prosecution. But the idea is this: The CIA agents who waterboarded Khalid Sheikh Mohammed, and the NSA officials who listened in on phone calls from Pakistan, should not have to worry about legal bills or public defamation. In fact, Bush might want to give some of these public servants the Medal of Freedom at the same time he bestows the honor on Generals Petraeus and Odierno. They deserve it.

"If laws can be broken with impunity today, they can and will be broken with impunity tomorrow. Not just laws against torture and war crimes, but any and all laws; any and all limits on government."- Michael Ratner, president of the Center for Constitutional Rights

...the prosecution of these attorneys [Alberto Gonzales, John Yoo, James Bybee, David Addington and William Haynes], as well as Bush, Cheney and the rest, is a critical part of not just imposing accountability on those who approved and carried out torture in the name of the American people, but in dismantling a legal framework that could lead to more torture in the future...

In a recent cover story of Harper'sMagazine, human rights legal scholar Scott Horton lays out the rationale for pursuing the crimes of the Bush administration...

[But] For Ratner, the models that have been suggested thus far don't go far enough. In his view, the only way to restore the rule of law is to pursue criminal investigation and prosecution. "People have been pulling their punches when it comes to seeking full prosecutions," he says, "because of the feeling that is not politically feasible." It may be true in the end, "but unless you demand it, you're not going to get it." Failing to try, he says is "the worst defeatism you can have."

"The most successful democracy in history is just about to see war crimes, do nothing about it -- and that's an indictment not just of George Bush and his administration. It's an indictment of all of us if we walk away from a clear war crime and say it's time for another commission." - Jonathan Turley

Turley: Bush calling Democrats' bluff by not pardoning torturers

David Edwards and Muriel KanePublished: Wednesday November 26, 2008

The White House has begun announcing the names of people who will be receiving presidential pardons, but officials who have been involved in torture are unlikely to be among them. According to the Wall Street Journal, the Bush administration has decided that blanket pardons for those officials are unnecessary because they are protected by the Justice Department's "torture memos."

"You remember those memos, right?" MSNBC's Rachel Maddow asked on Tuesday. "Part of the Bush administration's unofficial game plan to ... dismiss the Geneva Conventions and other laws by using the veneer of serious legal scholarship to create an illusion that these near-death interrogation tactics ... were somehow legal."

However, constitutional expert Jonathan Turley told Maddow, "I don't believe that anyone seriously believes in the administration that what they did was legal. This is not a close legal question. Waterboarding is torture. It has been defined as a war crime." Instead, Turley suggested that "what's really happening here is a rather clever move at this intersection of law and politics."

"Frankly, everybody in the room was applauding or sometimes laughing, and I thought, 'I've got to stand up and say something.' And I did," he told the paper. "I stood up and said, 'Tyrant,' then I sat down again, then I left."

The outburst came well before Mukasey's collapse and likely did not contribute to it. Sanders left before the end of Mukasey's speech because he wasn't enjoying himself, he told the paper.

Deputy director of the CIA under George Tenet, John Brennan headed the Terrorist Threat Integration Center and its successor, the National Counterterrorism Center, until retiring in 2005.

It simply is noteworthy of comment and cause for concern -- though far from conclusive about what Obama will do -- that Obama's transition chief for intelligence policy, John Brennan, was an ardent supporter of torture and one of the most emphatic advocates of FISA expansions and telecom immunity. - Glenn Greenwald

We tend to focus on Guantanamo, but it represents the tip of the iceberg... many thousand detainees held within Iraq and elsewhere. According to the following story,

U.S. forces are holding around 16,500 detainees in all

the largest facility, with some 12,900 prisoners, is at Camp Bucca near the city of Basra, some 340 miles southeast of Baghdad

the vast majority of those in U.S. custody are not considered dangerous, so the military is focusing its legal efforts on the 5,000 it deems a threat

since the war began, some 100,000 people have passed through the system

The U.S. military is rushing to build criminal cases ahead of 2009

Detainees are seen outside their cell block at the U.S. detention facility at Camp Cropper in Baghdad, Iraq, on Nov. 10.

Maya Alleruzzo / AP

Sun., Nov. 23, 2008

CAMP CROPPER, Iraq - The U.S. military is rushing to build criminal cases against some 5,000 detainees it deems dangerous -- including suspected members of al-Qaida in Iraq -- because the proposed security pact with Iraq would end its right to hold prisoners without charge.

The agreement, which is to be voted on by Iraqi lawmakers Wednesday, is primarily intended to set a timetable calling for American troops to leave Iraq by the end of 2011. But it also calls for control of security matters to shift to Iraqi authorities.

If passed, the deal would mean U.S. troops could no longer hold people without charge as they have since the 2003 invasion that ousted Saddam Hussein. Beginning Jan. 1, all detentions would have to be based on evidence, and the U.S. would have to prosecute prisoners in Iraqi courts or let them go.

"At the end of the day, if there's not enough facts to justify a court case, then we'll have to release," said Brig. Gen. David Quantock, the commander of the U.S. detention system in Iraq.

During one of the largest events ever organized by the law school's Alumni Center, a three-member panel led by Dean Christopher Edley, Jr. discussed the highs and lows of the 2008 presidential campaign and expectations for 2009 and beyond...

A senior advisor on Obama's transition team, Edley told the alumni audience that an economy team is one of a handful of policy teams working within Obama's transition coalition. The others include national security, energy and climate change, health care, education, and immigration reform.

All those issues will be pursued in the first three months, said Edley, with intense deliberations to determine where there's appetite for bold action. "Obama wants to do more rather than less. But the president doesn't write legislation, Congress does."

In addition to the major issues, Edley also places civic engagement high on Obama's must-do list.

Well, I say we can demonstrate that engagement by supporting the John Yoo Resolution, http://tinyurl.com/65oruh (see "Attachment #1"), before the Berkeley City Council.

Thursday, November 20 2008

Candace Gorman

A federal judge has ordered the release of five Guantanamo detainees, and this past week, President-elect Obama appeared on 60 Minutes saying he would like to see the facility closed.

Candace Gorman is an attorney who represents two men held at Guantanamo. She visited her clients two weeks ago. Candace tells Dick Gordon how the men reacted to the election and changing news about the U.S. detention center, and she talks about how working with her clients has changed her own life dramatically. Candace says her fear of government surveillance has led her to close her law practice and work exclusively on her Guantanamo cases until both men are freed.

Judge Leon who has been conducting Habeas hearings in DC just ordered that five of the six Bosnians held at Guantanamo these past 61/2 years must be released. For those not familiar with Judge Leon he is a very conservative Bush appointee and the "justice" department thought it had a friend in him that would just do what they asked. Fortunately he is a Judge first and foremost. - H. Candace Gorman

Ruling Comes After Landmark Supreme Court Ruling on Right to Habeas Corpus

By Del Quentin Wilber

WASHINGTON -- A federal judge on Thursday ordered the release of five Algerians held at Guantanamo Bay, Cuba, and the continued detention of a sixth in a major blow to the Bush administration's strategy to keep terror suspects locked up without charges.

In the first case of its kind, U.S. District Judge Richard J. Leon said the government's evidence linking the five Algerians to al-Qaida was not credible as it came from a single, unidentified source. Therefore, he said, the five could not be held indefinitely as enemy combatants, and should be released immediately.

"To allow enemy combatancy to rest on so thin a reed would be inconsistent with this court's obligation," Leon told the crowded courtroom.

As a result, he said, "the court must and will grant their petitions and order their release."

As for the sixth Algerian, Belkacem Bensayah, Leon said there was enough reason to believe he was close to an al-Qaida operative and had sought to help others travel to Afghanistan to join the terrorists' fight against the United States and its allies.

One of the men to be released is Lakhdar Boumediene, whose landmark Supreme Court case last summer gave the Guantanamo detainees the right to challenge their imprisonment.

The Algerians' attorneys said they would appeal Bensayah's detention but hugged each other and colleagues in congratulations after Leon's ruling.

WASHINGTON - Barack Obama's incoming administration is unlikely to bring criminal charges against government officials who authorized or engaged in harsh interrogations of suspected terrorists during the George W. Bush presidency. Obama, who has criticized the use of torture, is being urged by some constitutional scholars and human rights groups to investigate possible war crimes by the Bush administration.

Two Obama advisers said there's little -- if any -- chance that the incoming president's Justice Department will go after anyone involved in authorizing or carrying out interrogations that provoked worldwide outrage.

photo by AP

"I really hate it when smart people have bone-headed ideas. The very thought of setting up yet another structure to deal with something that our courts were designed to deal with makes my skin crawl. If that idea makes its way up the chain we will be looking at least at another year before our innocent clients get the hell out of our gulag." -

President-electObama's advisers are quietly crafting a proposal to ship dozens, if not hundreds, of imprisoned terrorism suspects to the United States to face criminal trials, a plan that would make good on his promise to close the Guantanamo Bay prison but could require creation of a controversial new system of justice...

A third group of detainees -- the ones whose cases are most entangled in highly classified information -- might have to go before a new court designed especially to handle sensitive national security cases, according to advisers and Democrats involved in the talks...

The plan drew criticism from some detainee lawyers shortly after it surfaced Monday.

"I think that creating a new alternative court system in response to the abject failure of Guantanamo would be a profound mistake," said Jonathan Hafetz, an American Civil Liberties Union attorney who represents detainees. "We do not need a new court system. The last eight years are a testament to the problems of trying to create new systems."

I'm still haunted by a question a student put to me following a presentation I made at Columbia University on Tuesday evening. "If the bar is so serious about this," the student said, "then explain to me how it's possible that John Yoo and his confederates haven't been disbarred." I started to answer about the complexity of the disbarrment process, but I stopped. The student was right. If the bar were serious about this, it should have used its disciplinary tools to deal with it. This is not a case of an eccentric academic mouthing some cock-eyed theories. It is about a government official using the power of a government office to induce people to commit serious crimes...

I was amazed speaking with colleagues today who expressed their "torture exhaustion." "But we already knew all this," one said to me. "But how can you know about it, know that the nightmare still hasn't stopped, and not be infuriated?" I answered. "Have you abandoned all sense of ownership, or at least of participation, in the American idea?"...

Silence will buy us a continuation of this corruption of our nation. But isn't it worth raising your voice and articulating your anger to get our country back? It should start with insisting that Congress use the tools it has-oversight and the budget-to force changes. Say "no" to torture; it's an easy first step on the road back to decency.

Manadel al-Jamadi, dubbed the "Iceman," tortured to death in November 2003, using techniques that John Yoo approved in his torture memoranda.

The British government has initiated a criminal inquiry of the potential responsibility of CIA and British intelligence officials for detainee interrogation abuse, says Phillipe Sands in an interview with The American Lawyer posted today.

NOTE: Philippe Sands will visit UCBerkeley on November 18. See calendar in right hand column of this page for details.

Sands, a professor of international law at University College London and author of "Torture Team: Rumsfeld's Memo and the Betrayal of American Values," has strongly criticized the Bush administration's use of torture and extraordinary rendition and general flouting of the rule of law. While insisting that he's not calling on the new Obama administration to initiate any immediate criminal investigations or indictments of Bush administration officials, Sands said, "the first thing that needs to happen is establishing the facts. But if the facts are as they appear, then something is going to have to happen to allow the country to move on."

Sands also insists the Obama administration and the new Congress should revoke the The Military Commissions Act of 2006, which "purports to provide immunity for any person associated with criminal wrongdoing in relation to the treatment of detainees. All of these [laws] send out a signal that this administration is willing to tolerate wrongdoing and criminality. That needs to be reversed."

He would also like to see the new president "go into a little more detail and make explicit the U.S.'s reengagement with the rule of law domestically and internationally. The specifics of that mean no more torture, no more rendition, no more unilateral acts that blatantly violate rules and developing timetables for shutting down Guantanamo and ending the 'assault' on the International Criminal Court. [The U.S.] doesn't need to ratify the ICC but they need to stop demonizing it."

After former White House lawyer John Yoo's memos authorizing torture were finally made publicly, the American Freedom Campaign launched a petition drive urging his boss, U.C. Berkeley law school dean Christopher Edley Jr. (left), to fire him.

[T]he American Freedom Campaign is 100 percent supportive of the First Amendment and respects the academic freedom that tenure is designed to protect and encourage. It cannot be stated strongly enough that we are not opposed to "Professor" Yoo stating an opinion; we are opposed to "government lawyer" John Yoo violating his obligation to defend the Constitution and serve the American people. He was asked to provide a legal justification for torture and ignored every possible ethical -- and perhaps legal -- obligation in existence to give his superiors exactly what they wanted.

Today Dean Edley replied:

I believe the crucial questions in view of our university mission are these: Was there clear professional misconduct - that is, some breach of the professional ethics applicable to a government attorney - material to Professor Yoo's academic position? Did the writing of the memoranda, and his related conduct, violate a criminal or comparable statute?

Absent very substantial evidence on these questions, no university worthy of distinction should even contemplate dismissing a faculty member. That standard has not been met.

Of course there is no statute that specifically prohibits government lawyers from writing memos justifying torture and other war crimes - who would imagine the need to write one?

There's no doubt it would be a crime for a government lawyer to administer torture directly.

Yoo's memos authorized other government officials to administer torture. At a minimum, that makes him an accessory to their crimes.

If the party knowingly aided and abetted in the execution of the plan and became connected with plans or enterprises involving the commission of war crimes and crimes against humanity, he thereby became a co-conspirator with those who conceived the plan.

If Yoo were charged in a court of law with these crimes, would Edley defend keeping him on the Berkeley faculty? Of course not.

So the matter hinges on the fact that Yoo remains unindicted for his crimes, for the obvious reason that Attorney General Michael Mukasey, like Yoo and Bush, believes waterboarding is not torture. They are all wrong, but they are in power.

If John Yoo is a war criminal under Altstoetter, he belongs in prison - not on a law school faculty.

This is not the time to "wait and see" what Obama will do after January 20, or after 6 months or a year... let's remember that

There are real people who are suffering excruciating torments without any legal process as a result of the legal opinions and arguments of Yoo and his allies. They are languishing at Guantanamo, in Abu Ghurayb, in Afghani prisons and possibly other secret prisons throughout the world. - David Sylvester, "LIVING IN THE PARALLEL POLIS", http://bydavidsylvester.blogspot.com/